Tuesday, August 5, 2014

Inability to complete breath test requires driver to do blood test or face DMV Refusal Suspension, California DUI Lawyers share

This California DUI DMV Refusal opinion was found on Google Scholar.  Inability to complete breath test requires driver to do blood test or face DMV Refusal Suspension, California DUI attorneys share...noting this is not to be published or cited.

Jul 31, 2014

Pekin v. Valverde CA2/3 filed 7/31/14 Case Details
PEKIN, Plaintiff and Respondent,
GEORGE VALVERDE, Defendant and Appellant. No. B247358.

*Court of Appeals of California, Second District, Division Three.*
Filed July 31, 2014.

Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney
General, Michael E. Whitaker and Leah C. Gershon, Deputy Attorneys General,
for Defendant and Appellant.

Michael L. Schultz for Plaintiff and Respondent.

California Rules of Court, rule 8.1115(a), prohibits courts and parties
from citing or relying on opinions not certified for publication or ordered
published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.


The Department of Motor Vehicles (the DMV) appeals from the judgment of the
trial court granting the petition of Guldin Pekin for writ of mandate (Code
Civ. Proc., § 1094.5) and directing the DMV to revoke its suspension of her
driving privilege for one year based on her failure to complete a chemical
test. The issue is whether the evidence supports the trial court's finding
the arresting peace officer abused his discretion in determining Pekin
"fail[ed] to complete, a chemical test" pursuant to Vehicle Code section

We reverse.

We examine the record according to the usual rules of appellate review. (*Lake
v. Reed* (1997) 16 Cal.4th 448, 456-457
On July 9, 2011, California Highway Patrol Officers Sapp and Olsen stopped
Pekin on suspicion of driving under the influence of alcohol after she
weaved out of her lane on the Hollywood Freeway and forced another car to
take evasive action to avoid a collision. Officer Sapp concluded Pekin was
intoxicated based on a "strong" smell of alcohol emitting from the vehicle
and on observing Pekin's bloodshot and watery eyes, and slurred and soft
speech. Pekin admitted having consumed a beer. After giving Pekin the
standard admonishment, Officer Sapp administered a preliminary alcohol
screening devise (PAS) test. Although Officer Sapp instructed Pekin "3-4
times" that she must blow continuously to complete the test, she never
complied. Instead, Pekin "would put her lips on the tip of the mouth piece
and would give a quick puff of air then start sucking in air and then would
stop." The officer's written statement indicates that Pekin "failed to
perform [the] field sobriety tests as explained." Three manual PAS samples
from Pekin showed results of .105 percent, .080 percent, and .101 percent.

Officer Sapp arrested Pekin for driving under the influence of alcohol and
transported her to the 77th Street Jail for chemical testing. At first
Pekin "was not willing to complete a chemical test." Officer Sapp advised
her of the implied consent law and that her driving privileges would be
suspended or revoked if she refused or failed to complete a required
chemical test. Pekin opted for the breath test. The officer told Pekin that
if she were not able to complete the test, it would be marked as a
"refusal," and she would have to complete a blood test. Officer Sapp
testified Pekin "was advised of implied consent. Okay? At that time she
didn't want to do anything. Okay? I read her the back of the DS 367
advising her that she was going to lose her license. [¶] . . . [¶] At that
time she says, okay, I'll do a breath test."

Officer Sapp informs drivers that they must blow into the chemical machine
"anywhere from four to seven seconds" to complete the test. The so-called
EC/IR usage log for the breath test machine indicates, and Pekin testified,
that she blew into the breath machine three times. The first time, Pekin
blew 130 cc of air over .37 seconds. The second time, she blew 853 cc for
1.52 seconds. There are no data for the third blow. The log indicates as
the "End of Test Status: Test refused." Pekin testified that when she tried
to blow, the officer stated, "okay, okay, it's not working out." She
"begg[ed] to" try "again . . . So I did — I did three blows in a pretty
short time." He testified, "she put her mouth on the mouthpiece. She would
give a quick little, and then would either stop blowing [or] suck in air,
which causes the machine to stop, ultimately unable to provide two
sufficient samples." In between tries, he would instruct her about her
breaths. Officer Sapp testified "[s]he didn't complete the breath test."
Pekin "would not blow into the machine."

Officer Sapp spoke to his sergeant who told Sapp to indicate Pekin's
results as "refusal" "because [Pekin] was unable to complete the chemical
test." Officer Sapp instructed Pekin "multiple times" that she would need
to complete a blood test or he would mark her as a "refusal." According to
the arrest report, after being asked multiple times, Pekin responded, "`*I
won't do blood, I don't like needles.*'" (Italics added.) Finally, Officer
Sapp wrote that Pekin "refused all chemical tests" and recommended that the
City Attorney file charges against Pekin for driving under the influence of

Pekin's expert, forensic toxicologist Darrell Oliver Clardy, explained that
the breath machine either prints out a mouth-alcohol level or indicates
insufficient breath. To record a refusal to blow, the officer running the
machine must press a button, which shuts down the instrument. Clardy
testified that "[t]he instrument *would* have taken another test, and she
[Pekin] *would* have kept blowing. Because she went from 130 to 853 [ccs in
volume of air]. *The third test very reasonably would have been a good test*
[*of another driver*], *as the test just above* [*on the EC/IR log*]
*indicates.*" (Italics added.) Asked why the machine indicated three tests
were done but only two revealed data, Clardy opined "I'm not sure what's
exactly going on. We have — something's going on." The log "*gives an
indication of an electronic malfunction on the instrument at the time.*"
(Italics added.) He explained that "often the software is written [so that]
if the officer pushes the button . . . to stop the test, then it would just
say test refused." Clardy surmised, if Officer Sapp had not pressed the
"refused" button, the machine would have logged an *insufficient* sample.
Clardy opined that the officer denied Pekin the opportunity to blow more
than twice. Pekin also submitted letters from her dentist and her Botox
doctor who stated that Pekin has a fear of needles.
2. *Administrative hearing and Pekin's writ petition*

The administrative hearing officer found that Pekin was given a choice of
chemical tests and chose a breath test but was unable to complete it.
Officer Sapp then offered Pekin the blood test but Pekin explained she did
not like needles, which response the Officer Sapp deemed a "refusal" to
submit to the blood test. The hearing officer was unpersuaded by Pekin's
claim that she suffered from a needle phobia justifying her refusal to
submit to the blood test. The DMV imposed a one-year suspension of Pekin's
driving privileges. Pekin's petition for writ of mandate ensued.
3. *The trial court's ruling*

The trial court found Pekin did not demonstrate she was incapable of
submitting to a blood test and she never communicated to the officer that a
needle phobia rendered her incapable of taking a blood test. (§ 23612,
subd. (a)(2)(A).) Pekin told the officer only that she "did not like"
needles and "could not handle them." Pekin called no medical expert to
explain that she was psychologically unable to summit to a blood test. As
Pekin undergoes Botox treatments, which utilize needles, the court found
Pekin was merely afraid of needles. Thus, Pekin failed to establish that a
blood test was unavailable, with the result, the court found, Pekin
"refused to submit to a blood test."

However, the court found Pekin did not refuse to undergo a breath
test, and *did
not fail to complete that test.* The court concluded instead that Officer
Sapp did not expect Pekin to complete the breath test. The officer appeared
to the court to be in a hurry to finish the breath test and move on to the
blood test. The court agreed with Pekin's expert Clardy and ruled that
Officer Sapp abused his discretion by cutting off Pekin's attempts to take
the breath test given the increasing volume of Pekin's second attempt and
the higher number of attempts other arrestees recorded. The court found
Officer Sapp acted hastily in terminating the breath test. Finding no
evidence that Pekin was deliberately trying to evade the test, the court
ruled, Pekin thus did not fail to complete the test; rather Officer Sapp
did not permit her to perform it. The trial court granted the petition for
writ of mandate and ordered the DMV to set aside its suspension of Pekin's
driving privileges. The DMV filed its timely appeal.

The DMV contends there is no substantial evidence to support the trial
court's finding Officer Sapp abused his discretion in terminating the
breath test after concluding Pekin failed to complete it.
DISCUSSION 1. *Standard of review*

For the purpose of determining the appropriate standard of judicial review
of an administrative decision to suspend or revoke a driver's license, the
license is a "fundamental right." (*Berlinghieri v. Department of Motor
Vehicles* (1983) 33 Cal.3d 392, 398
Under Code of Civil Procedure section 1094.5, the trial court examines the
administrative record for errors of law and exercises its independent
judgment to determine whether the weight of the evidence supported the
administrative decision. (*Lake v. Reed, supra,* 16 Cal.4th at pp. 456-457
"`In making that determination, the trial court had to "weigh the evidence
and make its own determination as to whether the administrative findings
[should be] sustained." [Citation.]' [Citation.] `In exercising its
independent judgment, a trial court must afford a strong presumption of
correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of convincing the
court that the administrative findings are contrary to the weight of the
evidence.' [Citation.]" (*Garcia v. Department of Motor Vehicles* (2010)
185 Cal.App.4th 73, 82
On appeal, we determine whether the trial court's findings are supported by
substantial evidence. (*Ibid.*)
2. *The implied consent law*

As part of its effort to combat the problem of drunk driving,[2]

the Legislature enacted section 23612, the implied consent law. (*Smith v.
Department of Motor Vehicles* (1986) 179 Cal.App.3d 368, 373 (*Smith*)
The implied consent law provides that "a person lawfully arrested for
driving a motor vehicle while under the influence of alcohol impliedly
consents to submit to a chemical test, by breath or blood, to determine his
or her blood-alcohol level while driving the vehicle." (*White v.
Department of Motor Vehicles* (2011) 196 Cal.App.4th 794, 798 (*White*)
"If the person arrested either is incapable, or states that he or she is
incapable, of completing the chosen test, the person shall submit to the
remaining test." (§ 23612, subd. (a)(2)(A).) "`The implied consent law is
intended "to obtain the best evidence of blood alcohol content at the time
of the arrest" [citation] by means of securing "the civil cooperation of
all persons privileged to drive" . . . .' [Citation.]" (*Smith, supra,* at
pp. 373-374
italics omitted.)

The DMV is required to suspend or revoke a person's driving privilege if
the person "refuses the officer's request to submit to, *or fails to
complete,* a chemical test or tests pursuant to Section 23612" and the
officer had reasonable cause to believe the person had been driving a motor
vehicle in violation of sections 23152 or 23153. (§ 13353, subd. (a),
italics added.)[3]

The DMV challenges the trial court's determination that the weight of the
evidence showed Pekin *did not fail to complete the chemical breath test*
but that Officer Sapp prematurely terminated it. (§ 13557, subd.
(b)(1)(C).) The DMV does not find fault with the court's finding Pekin
failed to submit to a blood test. Rather, the DMV contends there is no
evidence to support the finding that Officer Sapp abused his discretion in
deciding that the chemical breath test would not work. The DMV asserts that
the weight of evidence shows Pekin engaged in a course of conduct that
exhibited gamesmanship, which conduct justified Officer Sapp's
determination, in his discretion, that the breath test was not going to
provide a useful result. We agree.

Law enforcement officers have discretion to decide the feasibility of a
chemical test under section 13353 by exercising prudent judgment and common
sense. (*Smith, supra,* 179 Cal.App.3d at pp. 374-375


The trial court's finding that Officer Sapp abused his discretion was based
on Clardy's testimony about his conclusion that Officer Sapp acted hastily
by terminating the test and that had the officer allowed Pekin more tries,
she would have blown a sufficient amount of air. The court was influenced
by Clardy's explanation about the increased volume in Pekin's second
attempt and the higher number of other arrestees' recorded attempts.
However, expert testimony does not constitute substantial evidence when
based on conclusions or assumptions not supported by evidence, or on
matters not reasonably relied upon by other experts, or on speculative or
conjectural factors. (*Sargon Enterprises, Inc. v. University of Southern
California* (2012) 55 Cal.4th 747, 770
*People ex rel. Brown v. Tri-Union Seafoods, LLC* (2009) 171 Cal.App.4th
1549, 1567-1568
Clardy's testimony that Pekin's next attempt "very reasonably would have
been a good test" is utterly speculative and is unsupported by the evidence
that showed Pekin failed to blow for a sustained period, three times in the
field and three times at the 77th Street Jail. It does not necessarily
follow from the increasing length of Pekin's second effort at the police
station that her next attempt would have been *sufficient.* As support for
this conclusion, Clardy pointed to the test given to the driver prior to
Pekin, which test is certainly not evidence of what Pekin would do. Clardy
then contradicted his own testimony that the machine would have taken
another sufficient sample by surmising that the reason Pekin's last attempt
did not register on the log was a malfunction with the machine. "It is
axiomatic that taking a breath test requires a machine that is operative. .
. . It would have been futile to continue to take further samples on that
machine as it was not functioning properly." (*Gobin v. Alexis* (1984) 153
Cal.App.3d 641, 649
Clardy's opinion that Officer Sapp abused his discretion by denying Pekin
the opportunity to blow more than twice conflicts with Pekin's testimony
and the log's indication, that Pekin blew three times. Absent Clardy's
speculative, unsupported, and contradictory testimony, there is simply no
evidence to justify the trial court's conclusion that the weight of the
evidence showed that Officer Sapp abused his discretion by concluding the
test was not working.

Without Clardy's testimony, there is no evidence to support the trial
court's determination that the weight of the evidence contradicted the
findings of the administrative hearing officer. *Garcia v. Department of
Motor Vehicles, supra,* 185 Cal.App.4th 73,

is instructive. There, the driver engaged in stalling tactics to reduce his
blood alcohol content by staring at the machine and changing his mind about
which test to take. (*Id.* at p. 78.) The officer advised the driver that
he needed to comply with testing or his conduct would be considered a
refusal and he would lose his license for a year. (*Ibid.*) The officer
told the driver to place his lips on the mouthpiece of the breath machine
and blow strongly and steadily until the machine beeped. The driver claimed
not to comprehend the directions. The officer instructed the driver three
more times, after which the driver put his lips on the mouthpiece and blew
for about one and a half seconds before stopping. The driver was given one
more time to comply, but simply stared at the mouthpiece. (*Ibid.*) The
officer deemed the driver's lack of cooperation to be a refusal to take a
chemical test. (*Ibid.*) The administrative hearing officer agreed. (*Id.*
at p. 79.) The trial court upheld the ruling and the appellate court
affirmed, stating the driver "failed to complete the breath test after
being repeatedly warned that his failure to do so would constitute a
refusal. The record shows that Garcia tried ineffectually to blow once and
then refused or declined to try any further. The trial court did not find
that Garcia was `incapable, or state[d] that he . . . [was] incapable, of
completing the chosen test. . . .' (§ 23612, subd. (a)(2)(A).) The trial
court did not find credible Garcia's testimony that he was unable to
complete the test because of nausea." (*Id.* at p. 83; accord, *White,
supra,* 196 Cal.App.4th at pp. 797,

798 & 800 [where phlebotomist was repeatedly unsuccessful in drawing blood,
driver requested that the technician stop and then refused the breath test.
Held driver failed to complete a chemical test.].) These authorities
convince us the circumstances here are susceptible of one conclusion namely
that Officer Sapp exercised his discretion in concluding that Pekin was not
going to provide workable results with the breath test.

The record shows the officer repeatedly instructed Pekin on how to use the
breath test machine and each time she ineffectually blew into the
mouthpiece. Pekin failed to properly blow at least six times, thrice at the
scene of her arrest where she nonetheless recorded blood alcohol levels
above the legal limit, and three times at the police station. She begged
for, and he allowed her, a third attempt at the police station, although he
did not remember that attempt by the time of the hearing. There is no
evidence other than speculation that a fourth attempt would have produced a
satisfactory volume of air, whereas Officer Sapp testified he had concluded
she would not blow into the mouthpiece long enough to register a result.
"Compliance with the provisions of the implied consent statute requires
that the arrestee complete, not merely attempt, one of the . . . possible
tests." (*Gobin v. Alexis, supra,* 153 Cal.App.3d at p. 649
It was not Pekin's failure to produce a measurable *breath* sample that
Officer Sapp labeled as a failure to complete a chemical test; it was her
refusal to then submit to the blood test — about which there is no dispute
— that triggered the notice of suspension. (See *Fitzpatrick v. Department
of Motor Vehicles* (1993) 13 Cal.App.4th 1771, 1775

[failure to comply with implied consent law resulted not from failure to
produce measurable breath sample but later refusal to submit to blood
test].) As a matter of law, the weight of the evidence does not support a
finding contrary to that of the administrative hearing officer.

The judgment is reversed. Appellant to recover costs on appeal.

KLEIN, P. J. and KITCHING, J., concurs.


All further statutory references are to the Vehicle Code, unless otherwise


In California it is unlawful for a person to drive under the influence of
any alcoholic beverage or to drive with 0.08 percent or more of alcohol by
weight in his or her blood. (§ 23152, subds. (a) & (b).)


Section 13353, subdivision (a) reads, "If a person refuses the officer' s
request to submit to, or fails to complete, a chemical test or tests
pursuant to Section 23612, upon receipt of the officer' s sworn statement
that the officer had reasonable cause to believe the person had been
driving a motor vehicle in violation of Section 23140, 23152, or 23153, and
that the person had refused to submit to, or did not complete, the test or
tests after being requested by the officer, the department shall do one of
the following: [¶] (1) Suspend the person's privilege to operate a motor
vehicle for a period of one year. . . ."